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Whose Art Is It Anyway?

By Clinton Cargill April 29, 2013 6:17 pmApril 29, 2013 6:17 pm

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The United States Second Circuit Court of Appeals ruled last week on a copyright dispute that pitted the photographer Patrick Cariou against the artist Richard Prince. The court decided in favor of Prince, reversing a 2011 federal ruling in which he was found to have used Cariou’s photographs illegally in a series called “Canal Zones.” The case might have broad implications for photographers and artists. As a photo editor, I can sympathize both with a photographer’s desire to protect his original work and with the concerns about limiting artistic freedom through the fair-use exception.

The ruling (and Justice Wallace’s dissent) is a useful primer for anyone interested in copyright law. It’s also a fascinating discussion about meaning, expression and how we evaluate artistic intent.

Here’s the opinion on Prince’s statements about his own work:

Prince’s deposition testimony further demonstrates his drastically different approach and aesthetic from Cariou’s. Prince testified that he “[doesn’t] have any really interest in what [another artist’s] original intent is because . . . what I do is I completely try to change it into something that’s completely different. . . . I’m trying to make a kind of fantastic, absolutely hip, up-to-date, contemporary take on the music scene.”

And on weighing an artist’s stated intent against a viewer’s perception:

It is not surprising that, when transformative use is at issue, the supposed infringer would go to great lengths to explain and defend his use as transformative. Prince did not do so here. The fact that Prince did not provide those sorts of explanations in his deposition — which might have lent strong support to his defense — is not dispositive. What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so. Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may “reasonably be perceived” in order to assess their transformative nature.

It’s interesting to watch judges make a decision about something that artists and critics have yet to resolve.

Bruce Grierson wrote this week’s cover story about Ellen Langer, a Harvard psychologist who has conducted experiments that involve manipulating environments to turn back subjects’ perceptions of their own age.Read more…